Family migration overview (non-IAAS) Flashcards
Odelola v Secretary of State for the Home Department [2009] UKHL 25
Odelola establishes the general rule that changes in the Immigration Rules apply not only to applications made on or after the date that they take effect but also to applications pending as at that date, unless the relevant Statement of Changes contains an express indication to the contrary (per Lord Brown at [39]).
When will a family app be decided under the old rules (at Part 8)?
NB new suitability provisions in Appendix FM will always be applied (S-EC; S-LTR; S-ILR)
When the app is made before 9 July 2012 (when HC194 took effect), AND decided before 6 September 2012 (when HC565 took effect).
Where entry clearance was granted under Part 8, the applicant will continue their route to settlement under Part 8: but subject to the new “suitability” requirements at Appendix FM. Partners will then be on a 24m route to settlement.
Children: ALL apps for children of settled parents (rr297-300), and children born in the UK (rr 304-309). Apps for adopted children, but subject to new financial requirements at Appendix FM
When will a family app be decided under the new rules (at Appendix FM)?
When the app is made on or after 9 July 2012. Plus, even for pre-9 July 2012 apps, where the decision is made after 6 September 2012.
Section EX: exceptions to certain eligibility requirements for LTR as partner or parent
Parent: genuine and subsisting parental relationship with British citizen or 7-year resident child, and not reasonable to expect child to leave UK
Partner: genuine and subsisting relationship, and insurmountable obstacles to family life with that partner continuing outside UK
NB then on 10y route to settlement rather than 5y
Financial requirements for entry clearance as partner
Old rules: adequate maintenance and accomodation without recourse to public funds
Appendix FM: £16k plus £3,800 for first (non-settled) child and £2,400 for additional children.
OR savings of £16,000 plus 2.5 * shortfall in income
NB, for entry clearance, only sponsor’s income taken into account. (where in-country, can count applicant spouse’s income from lawful employment)
Where sponsor is on certain disability benefits, income threshold n/a - just have to prove able to maintain and accomodate without recourse to public funds.
NB: The Exception at EX.1 does not apply to entry clearance
Appendix FM-SE
Family members specified evidence
Sets out the specified evidence applicants must provide to meet the requirements of Appendix FM (financial marriage, and English language)
Evidential flexibility set out in para D.
Berrehab v Netherlands (1988) ECHR
Cohabitation is not an essential feature of family life, although it is strong evidence of its existence (not “sine qua non”)
HK (Turkey) [2010] EWCA
The family life of young adults did not terminate simply because they reached majority, when they continued to live at home
Ahmadi [2005] EWCA
Two Afghan brothers were found to have family life where there was significant emotional dependency between them, notwithstanding a lack of recent cohabitation
RS (immigration and family court proceedings) India [2012] UKUT
Sets out proper approach to immigration appeals which involve family proceedings.
Does the claimant have an article 8 right to remain until the conclusion of the family proceedings?
If so, should the appeal be allowed to a limited extent and a discretionary leave be directed?
Alternatively, is it more appropriate for a short period of adjournment to be granted to allow the core decision to be made in the family proceedings?
If it likely that the family court would be assisted by a view on the present state of knowledge of whether the appellant would be allowed to remain in the event of a contact order being made?
Singh v ECO New Delhi [2004] EWCA
Possible to make application for EC to join family members outside the IR, by relying on Article 8
Adoptive child could seek entry clearance relying on Article 8 even where he had not had a chance to bond with his adoptive parents
M (Lebanon) & Others v the Secretary for the Home Department [2017] UKSC 10
JR of minimum income requirement (MIR) as incompatible with Art 8.
MIR acceptable in principle.
However, the court also held that the rules and policies used by the Home Office to assess such cases would need to be amended to take proper account of the impact on children and other possible sources of income and support. This caused the Home Office to amend its rules, and now its guidance
Changes to Appendix FM MIR following MM (Lebanon)
HC290 - effective 10 August 2017
Other sources of income will be considered to meet the Minimum Income Rule in certain circumstances
Where other sources of income are relied upon the applicant, partner and any children, will be granted leave on a 10-year route to settlement
To give Appendix FM the cover of being compliant with section 55 of the Borders, Citizenship and Immigration Act 2009
To allow for recourse to public funds in certain circumstances
Clarifying the drafting of the English language requirement for further leave to remain as a partner or parent
Ensuring that a partner of a person here with refugee leave or humanitarian protection cannot qualify for settlement before that person has done so
Pre-flight family reunion
Under Part 11
Nb Appendix FM is only applicable to POST flight family
Exception at Section EX
Exception to financial, immigration, and language requirements for LTR and ILR in partner route and parent of a child in the UK route.
NB does NOT apply to entry clearance
NOT relevant for child of partner in UK route, or ADR route.
What if can’t meet requirements? Eg, can’t meet financial requirements
GEN 3.2
If there are exceptional circumstances would would render a refusal of the application a breach of Article 8 because of unjustifiably harsh consequences - grant EC/LTE/LTR.
How long does each route take?
Partners:
Old rules (2012) - 24m route
App FM - 5y route (meet all reqs) or 10y route (relying on EX)
Parent of child in UK:
App FM: 5y or 10y (EX) route
Children of (non-settled) parent in UK: leave in line with parent
ADR:
If sponsor Brit/settled, ILR
If sponsor refugee, leave in line with sponsor
Children of settled parents (Part 8):
ILR if all req’s met
Limited leave otherwise
Eligibility of parent of child in the UK under App FM
Active role
Provide adequate maintenance and accommodation
English
Suitability at S-EC
Eligibility of child of parent with limited leave in UK
under 18 at date of first app
not married
not leading independent life
joining or coming with parent with limited leave
NB OK for child to be here irregularly
Financial req - as for partner route. But N/A when parent is on 120m route
Eligibility of ADR
Grandparent, parent, sibling, or child over 18
requires long term personal care; cannot be met in country of origin
Financial req - adequate maintenance and support
For Brit/settled sponsor, must provide undertaking
IR 353
Applies to fresh claims relating to family life, just as much as to asylum cases.
Family Reunion under Part 11
Pre-flight family
No Eng lang, maintenance or accommodation requirements
But no exemption from general grounds of refusal
Covers: spouses/civil partners, unmarried or same sex partner, children
Applicant must be currently a refugee (so don’t apply to naturalise pre-maturely!)
Visas often wrongly endorsed “no recourse to public funds” - this is not allowed by the rules
